Use of Dominance, Unlawful Conduct, and Causation Under Section 36 of the New Zealand Commerce Act: A U.S. Perspective

Posted by D. Daniel Sokol

Jeffery M. Cross, Freeborn & Peters J. Douglas Richards, Cohen Milstein Maurice E. Stucke, University of Tennessee College of Law and Spencer Weber Waller, Loyola University Chicago School of Law offer Use of Dominance, Unlawful Conduct, and Causation Under Section 36 of the New Zealand Commerce Act: A U.S. Perspective.

ABSTRACT: The proper interpretation of the abuse of dominance provisions in Section 36 of the New Zealand Commerce Act has been a matter of controversy. The courts of New Zealand have taken a view of the requirements of this important provision of competition law in a narrow and formal manner that makes it very difficult to take enforcement action against conduct which has a net anticompetitive effect, but which has no, or at best minimal, business or procompetitive justification. We offer this white paper to provide a United States perspective to suggest that the current counterfactual test applied by the courts of New Zealand is not an effective enforcement tool and significantly out of step with the interpretation of unilateral conduct by dominant firms in the United States.